Magazine: Spring 2012

FOUNDED IN 1994 BY Kevin “Seamus” Hasson, the Becket Fund for Religious Liberty has become one of the premier public-interest law firms working to defend religious freedom from encroachments by government. This year alone, Becket has won two very significant religious liberty cases: one at the Supreme Court beating back an attempt by the Equal Employment Opportunity Commission to interfere in a church’s right to choose its ministers; the other a district court victory that struck down a Washington State regulation requiring pharmacists to dispense the “morning after” pill in spite of any religious objections to abortion. Currently, Becket is also suing the Department of Health and Human Services over its mandate that all employers, including religious charities, hospitals, and schools, must cover contraception and abortion- inducing drugs in their employee health plans. We talked recently with Hannah Smith, Senior Counsel for the Becket Fund about the work of defending religious liberty.

The Insider: Why do we need the Becket Fund for Religious Liberty?

Hannah Smith: The Becket Fund for Religious Liberty was founded in 1994 by Kevin “Seamus” Hasson. Almost 20 years ago now, he saw the need for a non-profit public-interest law firm that would defend the rights of religious groups and individuals against the encroachment of government. We’ve seen in the years since an increasing threat to the ability of people in this country to practice their religious faith freely, to profess their faith through their actions in the public square, and to even talk about religious themes in the public square. The threats are increasing daily, and there’s a real need for the Becket Fund to push back against the rising tide of government coercion against people and institutions of faith.

TI: Why is there a rising tide of coercion against religious expression and religious practice?

HS: Probably lots of factors contribute to it. I think we see in a variety of contexts government increasingly regulating the private sphere of human behavior. And of course it’s not only religious liberty that suffers when that happens, but individual liberty generally. When government tries to take over an increasingly large part of the human experience, it of course encroaches upon individual liberty generally and religious liberty specifically.

TI: Right there in the First Amendment, it says: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …” So what is the problem? Are the courts still figuring out what those clauses mean, do the other branches of government misunderstand them, or do they just not care?

HS: Well, that’s a very complex question. I think the best way to answer that is to say that the First Amendment vigorously protects the free exercise rights of individuals and institutions, and it also protects against the government interfering in religious life through the Establishment Clause. So there is a very rigorous protection for religious individuals and groups enshrined by the Founders in the First Amendment. Of course, there are some in our culture who would try to interpret those protections extremely narrowly and to advocate that other competing values overtake them.

But in January, the Supreme Court announced its decision in Hosanna–Tabor Evangelical Lutheran Church and School v. EEOC in a 9–0 opinion and said quite clearly that—even in the face of federal statutes passed by Congress to protect against discrimination in the workplace—the First Amendment protects the right of religious institutions to choose their own ministers and employees who will personify their beliefs. In that case, the Court said that the First Amendment gives special solicitude to the rights of religious groups and pronounced very robust, broad, and sweeping protections for the rights of religious institutions under the First Amendment. That opinion shows that the Court recognizes the robust protections in the First Amendment despite these other competing claims.

TI: The Hosanna–Tabor case arose after a teacher sued a church school for firing her, right?

HS: Right. There was an elementary school teacher who became ill and then threatened to sue the church school if she didn’t get her job back after the school had repeatedly tried to accommodate her and hold the space open for her but was unable to do so because of her extended illness. The school went above and beyond what disability law required. When she threatened to sue the school, it was a violation of church doctrine against suing in civil court. The Lutheran Church has an internal dispute resolution system within the church that resolves disputes among members, including disputes over the ministry. The teacher’s threat to sue was directly against church doctrine, and so the school released her for insubordination. She sued claiming retaliation under the Americans with Disabilities Act.

The district court held for the church saying the teacher was a ministerial employee. Thus, she was prevented from bringing a lawsuit under a judicial doctrine called the ministerial exception to the federal anti-discrimination laws, which had been recognized by the federal courts of appeals over the last 40 years to protect this very special employment relationship between ministers and their churches. The Sixth Circuit reversed saying she could proceed on the claim, and then it went up to the Supreme Court.

The Supreme Court held 9–0 (including both Obama appointees) that the administration’s view of religious liberty was “extreme,” “remarkable,” and “untenable.” The argument the government put forward was that there should be no ministerial exception at all, and that even if there were a ministerial exception, it should be limited to employees who perform exclusively religious functions. Responding to the administration’s narrow test in oral argument, Chief Justice Roberts said that not even the Pope would qualify as a minister according to the administration’s view! So the Court rejected the administration’s very extreme and narrow view of religious freedom in that case.

TI: How many different faith denominations has the Becket Fund represented in its 17 years?

HS: We have a very high success rate. I would say it’s probably somewhere between 80 percent and 90 percent. We choose our cases carefully. We choose them based on the legal principle involved. We want to advance the law in a positive direction, to protect religious freedom as much as possible, so we’re careful in the cases that we choose and we select them with an eye toward establishing precedent that’s helpful to religious freedom as well as, of course, to redeem our clients’ interests in those cases.

TI: What would you say are the three most important cases you’ve won so far?

HS: The Hosanna-Tabor case, first. That was our first case before the U.S. Supreme Court, and we won it in a unanimous opinion, which was a great victory.

Second, Newdow v. Rio Lindo Union School District— the Pledge of Allegiance case in the Ninth Circuit. We were successful in getting the Ninth Circuit to reverse course. Originally, the Ninth Circuit had held that the words “under God” in the Pledge of Allegiance were unconstitutional under the Establishment Clause of the First Amendment. In a later case, we successfully argued that the words “under God” in the Pledge of Allegiance reflected the Founders’ political philosophy that government exists separate from the natural rights that are given to us by God, and that the words “under God” merely reflected the Founders’ political philosophy that our rights derive from God, not from the government. The Ninth Circuit agreed and reversed its previous ruling. Getting the Ninth Circuit to reverse itself is no small feat.

As for the third case, I would say Stormans v. Selecky, the case that we just won up in Washington State in February, was also a huge victory. We represented pharmacists who had a religious conscience objection to dispensing the Plan B morning-after pill. We were co-counsel with a Seattle law firm, Ellis, Li & McKinstry. The district court held that a state regulation requiring pharmacists to dispense Plan B against their religious convictions was a violation of the First Amendment.

TI: How many different clients are you representing against the Department of Health Human Services over its contraception mandate?

HS: Four. The HSS mandate cases began last November when we filed suit in federal district court in Washington, D.C. on behalf of Belmont Abbey College, a Catholic liberal arts school located in North Carolina. Our second lawsuit was filed in December in Denver on behalf of Colorado Christian University, an evangelical nondenominational Christian school. In February, we filed in Alabama on behalf of EWTN, a Catholic global media network. That lawsuit has now been joined by the state of Alabama. We also filed in Florida on behalf of Ave Maria University, also a Catholic school.

TI: HSS says that the mandate on employers to cover contraception and abortion-inducing drugs and sterilization is needed in order to ensure women have access to those services. Is there really an access problem that can be fixed only with an insurance mandate?

HS: It is quite clear that access to contraception is not a problem. The government itself acknowledges that contraception is widely available through community clinics and hospitals with income-based support. You can get it at Planned Parenthood and even over the Internet. It is widely available. In fact, some statistics say that nine out of ten employer-based plans in the United States already cover these drugs and services. It’s just that last 10 percent that the government wants to force to cover these drugs and services, even if it means doing so against their religious convictions. That is impermissible under federal law, and so we have challenged the mandate under both the First Amendment and the Religious Freedom Restoration Act, a federal law that prohibits the government from imposing a substantial burden on religious exercise.

TI: Are religious charities and schools forcing their religious views on their employees when they refuse to cover contraception?

HS: Clearly, that’s not the case. Any employee or student at a religious institution can use contraception if they so choose. The employee or student can go out and buy it and use it. So, the religious institution is not forcing others to change their beliefs about contraception. Rather, the religious institution is simply saying: If you work for us, you do so knowing that you are working at a religious institution that cares deeply about its core convictions and is not going to offer you certain services because of those religious convictions. And so, go ahead, go out there and buy it yourself. Access it yourself. But we’re not going to pay for it because it’s against our religious beliefs. That’s a very fair balance between these two competing interests—the individuals who use it and the institutions who must stay true to their religious convictions.

TI: Is it just religiously affiliated employers whose conscience rights are trampled by these mandates, or would you say that a private employer, say a pizza chain, might have a case if its owners also have religious objections to contraception?

HS: Absolutely. We’ve heard from people around the country who have said: I own a business. I’m a private individual. I’m not a religiously affiliated group, but I’m offended by this mandate because I don’t want to provide these services because of my religious convictions. So, absolutely, this issue is not just a concern for religiously affiliated groups. This issue concerns all Americans who recognized this affront to liberty.

TI: When it comes to other provisions of ObamaCare, the administration has been perfectly willing to grant waivers for reasons that are obviously political. Would you care to speculate why the administration wouldn’t also be willing to accommodate religious freedom at least by making some kind of exemption available?

HS: That’s one of our arguments in the lawsuit. You can’t call this Affordable Care Act a neutral and generally applicable law when the administration has so blatantly carved out exceptions for so many groups. First of all, the Affordable Care Act doesn’t apply to small businesses; they’ve made a judgment that only businesses over 50 employees have to comply with the provisions of the law. They’ve also said that there are certain groups that won’t have to comply with the mandate if they’re grandfathered. If they don’t change their insurance policies past a certain date, then they’ll get a waiver of sorts because they’re grandfathered in. There are other more categorical exemptions that are included in the Affordable Care Act, protecting, for example, health care sharing ministries where people band together for an alternative to insurance. There’s also what we call the “Amish exception,” and an exemption for Native Americans as well. They’ve carved out other exemptions and given other waivers for political and commercial reasons. So there are a whole host of exemptions and waivers from the law which shows it’s not neutral or generally applicable, and unfortunately the government has not seen fit to provide an exemption that sufficiently protects religious groups and individuals.

TI: So are depredations of religious liberty becoming more frequent merely because the government is getting bigger and doing more stuff and that creates all sorts of conflicts and some of those conflicts happen to be over religion, or is there a particular disregard for religious values by those in government?

HS: I think it’s probably a combination of both. I think we’ve seen the increase in the power of the state generally, and when government grows it encroaches upon individual liberty. I think it’s also the case that we are seeing a pretty targeted attack against certain traditional religious values in our country. Those religious values are being marginalized and driven from the public square. That’s un- American. It simply flies in the face of our country’s history. It flies in the face of the values of our Founding generation, and it’s simply not good for our society generally to relegate the practice of religion to the private sphere only. Religious institutions are out there ministering and serving and helping the poor and feeding the hungry and doing all of those wonderful social service works. That’s something we need to think long and hard about before we create laws that have consequences that would drive those religious groups from our civil society.

ABSENT SIGNIFICANT POLICY CHANGE, America’s governments at all levels—and the people who depend on them—face a bleak future. Spending growth threatens to push both federal and state debt-to-gross domestic product ratios past 90 percent in a matter of years. That is the level at which the largest and most comprehensive studies suggest debt begins to dramatically reduce economic growth.

It might seem that the natural solution is to elect politicians committed to reining in spending, especially on the entitlement programs and pensions at the heart of state and federal overspending. The problem, however, is that even fiscally conservative politicians face significant perverse incentives to spend beyond their constituents’ means. And even if they do manage to trim the budget, today’s cuts can be reversed by tomorrow’s leaders.

Luckily, there is hope. Political incentives are shaped, in part, by institutions, i.e., the rules that govern budgeting, electioneering, and legislating. These rules influence the decisions of legislators, governors, presidents, bureaucrats, voters, and even lobbyists. So if we can improve the institutions, we can enduringly diminish the incentive to overspend.

Major institutional reform does, of course, pose a risk. If done poorly, it risks institutionalizing bad incentives rather than good ones. But the institutional reformer need not fly blind. Much can be learned from the U.S. states. Over the years, each state has experimented with different institutional designs and scores of researchers have spent the past quarter century studying these institutions and their effects on spending. Those studies have made the best of cutting-edge econometric techniques to control carefully for other factors and, to the best of their ability, sort out cause and effect. My colleague Nicholas Tuszynski and I recently reviewed dozens of these studies and found that a number of institutions offer hope to those who wish to put government on a more sustainable course.

Consider, for example, one of the most studied institutions: a strict balanced-budget requirement. While nearly every state has a balanced-budget requirement, the stringency of these requirements varies widely. Studies find that, other factors being equal, per-capita spending in states with stricter requirements is about $180 less compared with other states. Studies also find that tighter requirements tend to yield better-funded “rainy day” funds and larger surpluses. States with stricter requirements are also less likely to suffer from a political business cycle in which spending spikes just prior to an election only to be cut back shortly thereafter.

Another well-studied institution is the supermajority requirement for tax increases. Fifteen states currently require a supermajority vote to raise taxes. Studies find that, after controlling for other factors, states with this requirement tend to spend between $100 and $150 less per capita.

Or consider the line-item veto. Researchers find that, in cases where the legislature and the executive are controlled by different parties, this institution reduces per capita spending by about $100. Better yet, consider a special variety of line-item veto known as the “item-reduction veto.” In states with this institution, the governor need not completely defund items, but instead may write in a lower amount. This changes the negotiating power between the governor and the legislature by effectively denying the legislature the ability to make the governor a take-it-or-leave-it offer. One study finds that, other factors being equal, this institution can limit per capita spending by as much as $471.

Committee structure seems to have a profound effect on spending. Theoretically, when only one legislative committee has jurisdiction over spending, it should be relatively easy for voters to assign responsibility for excessive spending. But when multiple committees have jurisdiction, no one has the incentive to restrain its appetite, and the entire structure is biased to overspend. The evidence seems to support this hypothesis. One study of state spending in the 1980s finds that on a per capita basis, those states with multiple spending committees tend to spend about $200 more than those with just one.

The same study also examines the effect of separate taxing and spending committees. In this case, if one committee has jurisdiction over taxation but not spending, its members—unable to lavish spending on their constituents—have an interest in constraining the budget. They should, therefore, be a check on the interests of the spending committees. But when one committee has jurisdiction over both spending and taxing, its members will be less interested in reining in the budget. Indeed, it appears that states with unified spending and taxing committees spend over $1,000 more per capita compared with states that separate the two functions.

Some institutions affect spending in counterintuitive ways. For example, while many fiscal conservatives champion biennial budgeting, studies suggest that states with biennial budgets actually spend about $120 more per capita than states with annual budgets. Similarly, in some states, if legislators fail to reach an agreement on the budget in time, the government automatically shuts down. Though one might think this would lead to less spending, the very threat of a government shutdown seems to be enough to keep it open. Moreover, it seems to tilt the balance of political power toward those who favor more spending not less: in states with automatic shutdown procedures, per capita spending is about $80 more.

A number of states have experimented with formal rules that are specifically designed to arrest excessive government growth. These so-called “tax and expenditure limits” (TELs) bind state spending, taxation, or both through formulas. These formulas include factors such as the personal income of state residents, population growth, the inflation rate, or some combination thereof. The evidence here is mixed. Some studies find that in high-income states the most popular variety of TEL—tying spending growth to growth in residents’ income—actually seems to be associated with more spending. Other studies find that TELs can be effective restraints on spending, but only if properly designed. It helps, for example, if the formula references inflation and population growth rather than resident income.

As the last example illustrates, not all of the research on government budgetary institutions is clear. Some topics such as term limits and direct democracy are still hotly debated by academics. And in many cases, subsequent studies of a particular institution have yielded more nuanced results. For example, a number of the institutions we reviewed are only effective in certain circumstances or when they are designed in a certain way (such as TELs). It is likely that we have more to learn about some institutions, such as the item-reduction veto, that have received comparatively less academic attention. But in other cases, such as the effect of strict balanced-budget requirements or supermajority requirements for tax increases, the literature is relatively clear: These institutions save money.

Justice Brandeis famously described the states as laboratories of democracy. Policy makers interested in arresting the unsustainable growth of government can learn much from the results of these experiments.

Mr. Mitchell is a senior research fellow at the Mercatus Center at George Mason University. This article is based on research he conducted with Nick Tuszynski and published as a Mercatus Center Working Paper, “Institutions and State Spending,” October 2011.

WE HAVE BEEN HEARING a lot of criticism lately about “thought policing” donors who supposedly want “to purchase faculty positions as playthings for their ideological desires.”

These comments typically come from leftist critics who concentrate their fire on conservative and libertarian donors. As I have argued elsewhere, the hypocrisy involved is evident, but here I’ll just argue that the griping is overblown.

True, it is possible to imagine a donor who would threaten academic freedom and integrity. If a donor demanded that academically substandard hires be made, that would threaten academic integrity; and if a donor tried to force the firing of a faculty member he disliked, that would violate academic freedom.

But the pretense that no donor’s views should ever influence a university is unserious. It’s simply not improper for a donor to try to add to the views on a campus by supporting scholars’ work or new academic centers.

Consider the fascinating case of Stanford law school, where center-right funders who wished to increase the study of law and economics collaborated with Stanford Law School dean Paul Brest, a serious scholar in his own right who has never been accused of having conservative views.

Brest, now a major donor himself as he presides over the Hewlett Foundation’s billions, has praised the law-and-economics donors and urged other funders, regardless of their political views, to learn from them. He devotes a chapter of his book, Money Well Spent: A Strategic Plan for Smart Philanthropy, to the role of donors in “building fields and social movements.” In it, he discusses the example of the conservative legal movement, as well as the hospice movement, the women’s rights movement, and “the population field” (a euphemism for the population control movement).

Brest’s account of the law-and-economics movement emphasizes the large role played by a single funder, the John M. Olin Foundation, which underwrote law-and-economics centers at numerous law schools, including Harvard, Georgetown, Yale, and the University of Chicago, in addition to Stanford. Olin also helped launch the American Law and Economics Association, to solidify the movement in academia. Brest agrees with his fellow “prominent liberal legal scholar” Bruce Ackerman that law and economics was “the most important thing in legal education since the birth of the Harvard Law School.”

As a longtime law school dean, Brest saw firsthand how the donors, grantees, and other scholars functioned, but he voices no concern over threats to academic freedom or integrity. I know from him and the funders involved that both sides, despite their differing views, got along well and knew that their opposite numbers were keen to maintain the highest academic standards.

Of course, one part of high academic standards is vigorous debate that leads to evolving views—something that the law-and-economics donors, far from quashing, have helped foster. Brest notes, for example, that “in recent years, the law and economics paradigm has been challenged by research in behavioral economics,” which means that even a successful academic movement never achieves a permanent victory, but rather spurs further academic work. Real scholars welcome that.

Brest adds that this kind of development through argument is typical of nearly all successful social movements, and his remarks on the other movements he analyzes remind us that such movements typically include intersections between academe and donors seeking social change. The hospice movement, for example, has been intimately connected with the Yale School of Nursing and its dean. That movement has also seen significant funding of medical school faculty by the Open Society Institute, a giving vehicle for George Soros, who is a political left-wing donor whose giving equals or surpasses that of Charles Koch and David Koch combined.

Similarly, Brest notes that the Ford Foundation was central to the rise of the so-called women’s movement. He quotes former Ford president Susan Berresford, who brags about “supporting research in the new field called ‘women’s studies,’” which of course has had dramatic effects on college curricula and hiring.

Other examples I would add to Brest’s list include Soros’s crusade to reshape the entire discipline of economics, which he believes suffers from “market fundamentalism.” Soros has promised to funnel $5 million a year for 10 years through Central European University, a Budapest school he founded in 1991 and to which he’s donated hundreds of millions.

Soros launched his economics project in 2010 at King’s College, Cambridge, where 200 academics were exhorted for three days “to develop new paradigms that explain market imbalances and uncertainties and that reject ‘static’ concepts such as rational expectations and market equilibrium.” Now grants have begun to flow to Boston College; Carnegie-Mellon; Washington University, St. Louis; UC Berkeley; and Duke.

One Soros grant in particular makes nonsense of the claim that donors with political views necessarily warp academic work. The Center for the History of Political Economy at Duke has received Soros funding, even though it was founded in 2008 with a grant from the John William Pope Foundation.

Professor Bruce Caldwell, who directs the Center, says that neither Soros’s nor Pope’s staffers “ever gave a hint of attempting to influence what we do.” Caldwell explains: “We tell any potential donor to look at our mission statement to see if they want to support the work. We in turn look for good scholars doing good research. We’re glad when our work involves people with differing views because that’s much more interesting, but our discussions typically aren’t about politics. They’re about academic issues, such as how to interpret episodes in the history of economic thought.”

The most vociferous critic of outside “right” funders, the American Association of University Professors, may have missed this insertion of Soros money into academe because it was too busy thinking of ways it could obtain additional grants from his empire. In 2007, for instance, it hoped for a “grant from the Open Society Institute and Soros Foundation, the theme of which is the press and the academy, and the influence of think tanks on the press’s perception of the academy.” In 2006, at a meeting funded by Soros’s Open Society Institute, “members of Committee A, other AAUP leaders, and members of the AAUP staff discussed with representatives of many other higher education organizations the policy statement Academic Freedom and Outside Speakers.”

Brest also could have cited other Ford Foundation projects that have done far more to reshape faculties and curricula than anything a right-wing donor has ever dreamt of. For example, Ford pioneered the use of legal clinics at law schools as agents for leftish social change—a fact documented not only by conservative critics like Walter Olson and Heather Mac Donald but by left-wing supporters too.

And as I’ve noted elsewhere, Ford is a strong proponent of affirmative action, having spent decades funding (and sometimes creating) the most prominent left-wing groups that advocate for affirmative action. Not only is affirmative action one of the most controversial issues on any campus, it is also a major factor in admissions and hiring.

In perhaps its most significant contribution to this political movement in academia, Ford helped make possible the landmark Supreme Court decision that largely upheld the University of Michigan’s affirmative action policies; the foundation poured monies into the university’s legal defense, and to its nonprofit allies. AAUP, by the way, was one of those allies officially declaring its support for affirmative action while the case was underway and signing amicus briefs at every stage of litigation.

I’ve written about other ways AAUP has aided Ford’s affirmative action agenda for academe. But a free country will have donors who do such things and nonprofits like AAUP who eagerly collaborate. If you don’t like a particular project—if you think it’s unworthy of higher education or harmful to the nation—then argue over its substance. But please don’t complain that its donor has a political viewpoint.

FEW PEOPLE STOP TO THINK about the importance of the first three words of the U.S. Constitution: “We the people.” That simple phrase is the heart of a revolution in the history of governance and the key to American exceptionalism. We, the people, grant rights to the government. Rights are not granted to us by a benevolent monarch (whose heirs could change their mind). The people of the United States grant rights to the government, not the other way around—a fact that we emphasize by further limiting the powers of the government through the first 10 amendments to the Constitution. In many ways, this vesting of power with the people, rather than the government, also charges the people with the responsibility to keep their own checks on government action and expansion, demanding correction where necessary.

Founding Principles

Constraining the power of the government is a founding principle—perhaps the founding principle— of our country. So determined were the Founding Fathers to express clear limitations on the scope of federal power that their first changes to the Constitution were to clarify the things that the government was not allowed to do.

Contrast this pattern, if you will, to the way that legislation proceeds in modern times, with nearly every focus on adding to the reach and power of the government, be it federal, state, or local. Judges squint at the Commerce Clause to try to find even broader interpretations to legitimize Congressional actions that go far beyond what the framers of the Constitution must have imagined.

But there is a logic inherent in the principle of constraint and limitation, and nearly every other founding principle can be found in its wake. For example:

Individual Liberty. Perhaps the one item on which nearly all Americans can agree, regardless of political persuasion, is the centrality of individual liberty to the American philosophy of government. While we may dispute where the lines of liberty and responsibility cross, or where one person’s liberty should take a backseat to other more fundamental principles, we remain generally united on the principle that the government must not infringe upon certain intrinsic rights.

Respect for Free Enterprise and the Free Market. So much of the history of America’s Founding revolves around the clear desire to conduct one’s business free from government interference. We are, in essence, a country partially founded on the notion that taxation is a serious and generally undesirable matter. Yet, while there is no shortage of defenders of individual liberty, too few note that the free market is an extension thereof. After all, what good is personal freedom if it ends the moment you try to put a roof over your head or food on your table?

Respect for Tradition, Family, and the Foundations of Our Society. Government should not attempt to engage in social engineering or undermine the family. This principle includes respect for both religious freedom and religious liberty, that difficult combination of rights that guarantee both our right to practice our religion and our freedom from government intrusion, denominational favoritism, or even policies that are hostile to religious groups or agencies. It also includes an understanding of the importance of societal mores, the unwritten traditions and practices that are more deeply ingrained than any law and operate as both the glue that holds us together and the oil that allows our society to function.

Judicial Restraint. The courts should practice restraint in the same way that the legislative and executive branches should. This restraint includes staying within their role as an interpreter of law and not expanding their power to create legislation from the bench.

Executive Restraint. While the judicial branch has received more attention for its forays into legislative action, the executive branch has been quietly growing and creating its own body of law based on the regulatory power of the executive agency. Not only does this practice muddy the waters of accountability, but it deprives the people of their usual avenues of redress in legislative matters. The executive’s proper role as enforcer of the law carries with it a position of significant public trust (especially as it wields the force—the gun—that demands adherence to the law). Therefore, we must be as wary of efforts to expand executive power as with efforts to expand the power of all other branches of government.

Legislative Restraint. As with the other branches, it is important for the legislature not to overstep its constitutional bounds. While other branches may dabble in legislation, the way that we identify a lack of restraint on the part of the legislature is by observing that there is too much legislation: laws passed without a sense of accountability or without a practical method of enforcement; onerous laws that place too great a burden on individuals or businesses; laws that meddle in the domain of the family, parental rights, or matters of individual liberty; and laws that abuse the People’s trust as well as their treasury. The list goes on and on.

What do we do when the branches of government fail to check each other or limit assaults on liberty? Ultimately, it is the responsibility of the citizenry to keep watch on them and demand responsibility and accountability. That, of course, raises the question of how to discern the difference between the responsible and irresponsible government action. The following is a guide that helps identify how well the measure in question fares in a point-by-point checklist that evaluates the measure in relation to fundamental principles of good, constitutional government.

Government Action Checklist

In order to evaluate pending legislation or other government actions, ask these questions:

Is the action necessary?

It is astounding how often the inquiry could end after this simple question. A significant amount of legislation and other government action is redundant, spurred by vanity or special interests, incapable of properly addressing the problem it seeks to solve, or otherwise simply unnecessary.

Has there been a realistic and unbiased examination of the probable consequences of the action, including social, cultural, and financial consequences?

Taking responsibility for legislation means knowing as much as possible about the probable results of that measure as well as understanding the law of unintended consequences. While it may not be possible to know every conceivable cause/effect scenario, an effort must be made to evaluate the total impact of the measure in question.

What will the action cost and who will pay?

These questions are obvious ones but are not necessarily easy to get good answers for—a sign, of course, that the measure in question is very troubling and will likely fail a number of other items on this list.

Has there been a serious and unbiased examination of the constitutionality of the action?

The legislature should not shirk its own responsibility to the Constitution by passing off questions of legality to the courts. Not only is this practice one route to the slow erosion of our basic rights, but it also wastes taxpayer funds at every level of government.

Is the proposed law enforceable?

A particular vulnerability of many noble-sounding laws is that they are not enforceable. Enforceability should be considered for every proposed law. The question is not only whether it is possible to enforce the proposed measure, but also whether it is practical to do so given the resources available.

Will the action’s results be evaluated objectively?

The rubber meets the road when we ask whether the consequences of the legislation have been thoroughly considered. If there is no interest in objectively measuring whether the action meets stated goals, then one must wonder what the true purpose of the law is.

Who is responsible for implementing, enforcing, and evaluating the legislation?

Be especially wary of those measures that require new agencies, divisions, or departments in order to be implemented. The natural tendency of government bureaucracies is to grow, and they’re very hard to cut back once they’ve been created. And as government grows, individual rights shrink.

Does the action infringe upon any individual rights or disrupt important societal foundations?

This question concerns not only infringement of basic constitutional rights (like religious liberty or speech), but the maintenance of respect for societal foundations and mores, such as the right of parents to raise their children according to their beliefs. Such rights must be balanced against issues of public policy and safety, but the governmental interest must be a strong one to justify state intervention.

Does the action create a burden for business or infringe unnecessarily upon free enterprise?

The concern here is not just about maintaining public policies that will benefit the economy, but also about a more fundamental notion: that the free market is an essential foundation of individual liberty and therefore the government should keep free enterprise free.

Does the proposed law create accountability for those responsible for passing and enforcing it, ultimately reserving power to reverse it in the hands of the voters?

When every other safeguard fails, the one remaining protection for the people is that they can ultimately hold their elected representatives accountable and thereby find a way to address their errors. In addition, recent history has demonstrated that a lack of willingness to enforce laws already in existence has exacerbated existing problems. Laws should include accountability measures for those required to enforce them so as to ensure that they are involved in the evaluation of the feasibility of the legislation and do not “pass the buck” on their own responsibility once a law is passed.

Ms. Hill is a policy analyst at the Grassroot Institute of Hawaii. This article is adapted from an article previously published by the Grassroot Institute.

GAINING ACCESS TO SOMEONE’s E-MAIL inbox is one of the most important things you can do to help achieve the goals of your organization. Whether it’s securing new donors, educating on a particular issue, or spreading the word about an upcoming event, e-mail can be an effective and low-cost way to get your message out. Yet, for many, e-mail marketing is an insufferable task that yields low results and requires a lot of time. So, how do you gain new subscribers, keep the ones you have, and avoid being relegated to the spam folder? Here are nine ways to improve your e-mail marketing program.

1. Use an E-Mail Service Provider. If you are still sending e-mails from Microsoft Outlook, you have lost the battle. Partner with an e-mail service provider who will ensure that your e-mails are properly delivered, lower the risk of your e-mails being flagged as spam, provide metrics on the performance of your e-mail newsletters and other messages, and help you keep your lists organized. At The Heritage Foundation, we work with Paramount Communications, but there are a number of terrific e-mail vendors out there.

2. Tell Your Prospective Subscribers What ’s in it for Them. Always remind yourself that nobody really cares about your product, your event, your organization; they care about themselves. That’s not meant to be flippant. It’s an important reminder that people need a compelling reason to give you their e-mail address. Our lives, not to mention our e-mail inboxes, are cluttered with many offers, ads, and general noise and distraction. Yet many organizations include tiny little forms on their Web sites inviting people to receive “the latest” or “news and updates” and then expect results. In our marketing at Heritage, we’ve found significant increases in subscribers when we offer a free report, download, or “e-product” for signing up. That provides a compelling reason for many to offer up a valuable asset to us: their e-mail addresses. So always start by asking what’s in it for your subscribers and then make sure you have a great answer.

3. Make a Good Visual Impression. Don’t sabotage your great written content with poor design. Make sure your e-mail templates have a balanced mix of images and text. Remember that Gmail and Microsoft Outlook don’t support background images, so it’s essential to have your template coded so readers can see the full message. Like a magazine cover, the header of your e-mail is important; make sure yours is striking and distinctive. Check to make sure your templates translate to a mobile device. How does your e-mail template render on different devices? Take a look on a range of devices.

4. Write Good Copy. Your copy is what gets the job done for your subscribers, so spend most of your time developing content that sings. When writing effective e-mail copy, stay focused: E-mails should have a cohesive message with a clear call to action. And when it comes to writing your call to action, be specific. There’s nothing worse than asking your readers to do nothing more than “learn more.” Speak directly to your readers and be sure to vary the way you display your copy. There is no bigger turn-off for readers than a wall of text in your e-mail. Use bullets, different paragraph lengths, bold headings and sub-headings, and embedded links to create variety and increase scanability. Test long-form copy against short-form copy to see what works with your audience. And finally, hard copy proofread all of your content. Typos and other grammatical mistakes are the death knell for your brand and for any e-mail marketing program.

5. Test Your Content. If you really want to amplify your response and grow your e-mail lists, testing is a powerful way to get results. First, segment your list into two groups and then decide what particular issue you want to test. Put everything on the table for consideration: subject lines, to and from lines, images and graphics, buttons, send dates and times, frequency, and length. But be sure to test each element one at a time. The data you gain from these tests will uncover insights to strengthen your overall program, make your content interesting and rock solid, and keep your subscribers engaged.

6. Lay Out the E-mail Welcome Mat. If you want to keep your e-mail subscribers in the long term, make a great first impression with a welcome message. Your welcome message should be one of your very best by being straightforward in telling subscribers what they will receive and when, and will receive a preview of the content they can expect in the future. Be diligent about sending a welcome e-mail to new subscribers as quickly as you can after receiving a new e-mail address. If you are using a good e-mail service provider, you can automate your welcome message so that as soon as you receive a new e-mail address, a welcome message is instantly sent. Numerous marketing studies show a welcome message is one of the most underused yet most effective tactics in e-mail programs. Think of it as the e-mail equivalent of making a good first impression when meeting someone in person.

7. Incorporate Social Media into Your Marketing. Your Facebook and Twitter followers are already an engaged audience. Consider making an offer to them to subscribe to your e-newsletters and be sure to include links to your social media outlets in your e-mail template.

8. Follow the Rules. The CAN-SPAM Act, signed into law by President Bush in 2003, establishes standards for sending mass e-mail in the United States. Your e-mail service provider should manage compliance for you, but always double check and make sure any templates you create have a clear way for readers to unsubscribe for all e-mails and consider using a double opt-in process, where a confirmation email is sent to new e-mail subscribers and only after they click on a link contained within that e-mail are they added to your list.

9. Study the Data and Segment Your Lists. If you are working with a good e-mail service provider, you’ll have access to valuable data on how many people opened your e-mail, what links they clicked on, how many e-mail addresses bounced back, and much more. Pay careful attention to these data and adjust your activities accordingly. Is a portion of your list not opening e-mails? Isolate those names and send them a special message to encourage activity. See a lot of people unsubscribing? It’s a warning sign that you have some soft spots in your program. Go into testing mode to understand what is and isn’t working.

Following these guidelines will give you an e-mail program that can efficiently get your message out to millions in minutes.

Ms. Bullock is Director of Strategic Marketing at The Heritage Foundation.